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Litigation

JUSTICES QUESTION CONTRIBUTION RIGHTS IN KEY SUPERFUND CASE

Several key U.S. Supreme Court justices appeared skeptical of state and industry claims during Oct. 6 oral arguments in a closely watched cleanup case that federal Superfund law allows companies to sue other parties for cleanup costs in the absence of an EPA or state enforcement order or other "civil action."

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LANDMARK APPELLATE SUIT COULD EXPAND WHISTLEBLOWER PROTECTIONS

A federal appellate court is considering a landmark case that could expand whistleblower protections under federal environmental laws by clarifying whether an "authorized representative" of federal employees is allowed to challenge official retaliation for reporting environmental misconduct.

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DOJ CONCEDES POTENTIAL FLAWS IN EPA'S EFFLUENT TOXICITY TESTING METHOD

Justice Department (DOJ) attorneys appear to be conceding that the test EPA uses to measure the toxicity of industrial and wastewater treatment discharges may not be accurate at low levels of toxicity, according to DOJ testimony Oct. 15 in the U.S. Court of Appeals for the District of Columbia Circuit.

The concession may be significant because it could provide the court with justification to overturn a test the agency uses to determine whether industry discharges exceed allowable toxicity levels and should be subject to enforcement penalties.

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INDUSTRY FEARS RULING ON EPA REMINING RULE CREATES LEGAL LIMBO

A recent federal appeals court decision invalidating an EPA rule easing Clean Water Act (CWA) effluent requirements for companies that remine once-abandoned coal mines leaves the industry in legal limbo because it also criticizes case-by-case permitting that could be required until the agency issues a new rule, an industry source says.

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LANDMARK APPELLATE SUIT COULD EXPAND WHISTLEBLOWER PROTECTIONS

A federal appellate court is considering a landmark case that could expand whistleblower protections under federal environmental laws by clarifying whether an "authorized representative" of federal employees is allowed to challenge official retaliation for the reporting of environmental misconduct.

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KENTUCKY GROUPS SUE EPA OVER LACK OF ANTIDEGRADATION PROGRAM

Several Kentucky environmental groups are suing EPA to force the agency to create regulations aimed at preventing the degradation of waters in the state.

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RULING EXTENDS EPA REACH TO WATERS WITHOUT HYDROLOGIC CONNECTIONS

A federal appeals court has for the first time ruled that EPA and the U.S. Army Corps of Engineers can assert jurisdiction over wetlands that are adjacent to navigable waters, but do not necessarily have a hydrological connection to the navigable waters.

Observers say the unpublished decision is significant because it appears to expand a series of recent appellate decisions that favor expansive federal protections over navigable waters.

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DOJ ENFORCEMENT NUMBERS TOO RELIANT ON CLINTON CASES, ACTIVISTS SAY

The Department of Justice's (DOJ) recent announcement that it won over $4 billion in pollution control settlements in 2004 is drawing criticism from environmentalists, who say more than half of that amount stems from two cases that were originally filed -- and in one instance settled -- by the Clinton administration. The critics say DOJ's reliance on "legacy cases" masks a decline in enforcement resulting from Bush administration policies that roll back strict regulatory approaches, particularly against electric utilities.

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FARM'S PACT TO HALT AERIAL SPRAYING DELAYS WATER PERMIT PRECEDENT

A major New England fruit farm appears to have delayed, for now, a potential precedent requiring agricultural operations to obtain Clean Water Act (CWA) permits for aerial pesticide spraying by dropping plans for any aerial spraying and instead relying on ground spraying -- which does not require a permit.

However, agriculture industry officials say they still expect environmentalists to bring suit against the industry to expand a precedent that has already been set in several federal appellate rulings for aerial spraying in forestry, irrigation and pest control operations.

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DOJ ENFORCEMENT NUMBERS TOO RELIANT ON CLINTON CASES, ACTIVISTS SAY

The Department of Justice's (DOJ) recent announcement that it won over $4 billion in pollution control settlements in 2004 is drawing criticism from environmentalists, who say more than half of that amount stems from two cases that were originally filed -- and in one instance settled -- by the Clinton administration. The critics say DOJ's reliance on "legacy cases" masks a decline in enforcement resulting from Bush administration policies that roll back strict regulatory approaches, particularly against electric utilities.

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